Supreme Court justices on Wednesday expressed skepticism about the legality of aggressive tariffs imposed by President Donald Trump against most of the world’s nations.
Conservative and liberal justices sharply questioned Solicitor General D. John Sauer on the Trump administration’s method for enacting the tariffs, which critics say infringes on the power of Congress to tax.
Lower federal courts ruled that Trump lacked the legal authority he cited under the International Emergency Economic Powers Act to impose the so-called reciprocal tariffs on imports from many U.S. trading partners, and fentanyl tariffs on products from Canada, China and Mexico.
Sauer, who is defending the tariff policy as grounded in the power to regulate foreign commerce, said “these are regulatory tariffs. They are not revenue-raising tariffs.”
“The fact that they raise revenue was only incidental,” Sauer said, shortly after oral arguments in the case began.
Justice Sonia Sotomayor, one of the court’s three liberal members, told Sauer, “You say tariffs are not taxes, but that’s exactly what they are.”
“They’re generating money from American citizens, revenue,” Sotomayor said.
She later noted that no president other than Trump has ever used IEEPA to impose tariffs since it became law in 1977.
Justice Neil Gorsuch, one of six conservatives on the court, pressed Sauer on the fact that Trump unilaterally imposed the tariffs by citing purported international emergencies of trade imbalances and the flow of fentanyl into the United States, without Congress authorizing them.
“What happens when the president simply vetoes legislation to take these powers back?” Gorsuch asked.
“So Congress as a practical matter can’t get this power back once it’s handed it over to the president,” Gorsuch said. “It’s a one-way ratchet toward the gradual but continual accretion of power in the executive branch and away from the people’s elected representatives.”
Other conservatives — Chief Justice John Roberts and Amy Coney Barrett, Brett Kavanaugh and Samuel Alito — also pressed Sauer.
The tariffs start at a baseline of 10% on many nations and spike to as high as 50% on goods from India and Brazil.
The tariffs, if allowed to stand, would result in $3 trillion in extra revenue for the United States by 2035, according to the Committee for a Responsible Federal Budget.
That group last week said the federal government collected $151 billion from customs duties in the second half of fiscal year 2025, “a nearly 300% increase over the same period in” fiscal year 2024.
Rick Woldenberg, CEO of educational toy company Learning Resources, which is involved in a case against U.S. President Donald Trump, stands outside the U.S. Supreme Court, as its justices are set to hear oral arguments on Trump’s bid to preserve sweeping tariffs after lower courts ruled that he overstepped his authority, in Washington, D.C., U.S., November 5, 2025.
Nathan Howard | Reuters
Neal Katyal, a lawyer for the plaintiffs in the case, opened his argument by saying, “Tariffs are taxes,” picking up the theme that multiple justices had raised with Sauer.
“Our founders gave that taxing power to Congress alone.”
“We don’t think IEEPA allows this junking of the worldwide tariff architecture,” Katyal later said.
When Roberts asked him if tariffs implicated the power of the president to conduct foreign policy for the United States, as Sauer had argued, Katyal replied, “We agree that tariffs have foreign policy implications.”
But he added that the Founding Fathers had delegated the power to tax to Congress in the Constitution.
Katyal also pointed out that despite the argument that the reciprocal tariffs are being used to address trade deficits, Trump imposed a tariff of 39% on imports from Switzerland, an ally of the U.S., even though the U.S. runs a trade surplus with that nation.
No other president has ever done something like that, he said.
The Supreme Court, which heard more than 2½ hours of arguments, will not issue a decision in the case on Wednesday.
It is not clear when the court will release its ruling.
Treasury Secretary Scott Bessent, in a court filing in September, said the U.S. might have to refund $750 billion or more if the Supreme Court ruled the tariffs are illegal and if it waited until next summer to issue that ruling.
The case is seen as a key legal test for Trump, who has won some favorable rulings from the Supreme Court for other policies during his second term in the White House.
In a statement after the hearing, Victor Owen Schwartz, whose company V.O.S. Selections is one of the plaintiffs challenging the tariffs, said: “For nearly 40 years, my family has built this business from the ground up. Today, reckless tariffs threaten everything we’ve achieved.”
“Let’s be clear: these tariffs aren’t paid by foreign governments or companies,” said Schwartz, whose company imports wines and spirits. “It’s American businesses like mine, and American consumers, that are footing the bill for the billions of dollars collected monthly by our government.”
“Unlike past tariffs set by Congress that we could plan around, these new tariffs are arbitrary,” he said. “They’re unpredictable. And they’re bad business.”
Trump insists the tariffs are crucial to protecting the American economy and citizens. He says they serve as a sharp prod to companies to make their products in the United States.
In a social media post on Tuesday, Trump wrote, “Tomorrow’s United States Supreme Court case is, literally, LIFE OR DEATH for our Country.”
“With a Victory, we have tremendous, but fair, Financial and National Security,” Trump wrote in the Truth Social post.
“Without it, we are virtually defenseless against other Countries who have, for years, taken advantage of us. Our Stock Market is consistently hitting Record Highs, and our Country has never been more respected than it is right now,” he said.
“A big part of this is the Economic Security created by Tariffs, and the Deals that we have negotiated because of them.”
Critics of tariffs say their financial hit is borne not by foreign manufacturers but by U.S. importers who pay them and then largely pass on the added costs to American consumers.
Trump previously said he was considering attending the oral arguments, which would have been an apparent first for a sitting president.
On Sunday, he said on Truth SociaI, “I will not be going to the Court on Wednesday in that I do not want to distract from the importance of this Decision.
“It will be, in my opinion, one of the most important and consequential Decisions ever made by the United States Supreme Court,” he wrote.